Federal Supreme Court, 28.01.2026, 9C_222/2025
Facts
Following the entry into force of a new general zoning plan (PGA) in the Municipality of Prilly, the building capacity of two plots, each organized as a condominium (PPE), has increased. The Municipality notified each of the two condominium associations (rather than the individual owners) of a tax assessment decision for the community infrastructure financing tax, amounting to CHF 345,337.80 for one and CHF 316,169.40 for the other. The successive appeals filed by the condominium associations to the municipal appeals commission and subsequently to the Vaud Cantonal Court were rejected. The condominium associations are appealing to the Federal Supreme Court.
Legal Analysis
The dispute concerns whether a condominium association can be considered a taxpayer for a municipal infrastructure tax. According to Vaud cantonal law (art. 4b et seq. LICom) and the Prilly municipal regulations (RCTEC), municipalities may levy a tax to cover infrastructure expenses related to land-use planning measures that significantly increase the value of a property. The tax is owed by the "property owner" (art. 4d para. 1 LICom). The appellants allege a violation of the principle of legality in tax matters (art. 127 and 164 Cst.), the principle of ability to pay (art. 127 para. 2 Cst.), and the prohibition of arbitrariness (art. 9 Cst.). The classification of the tax (earmarked tax or causal levy) and its relationship to the concept of common charges in condominium law (art. 712h para. 2 item 3 CC) are also examined.
Application to the specific case
The Federal Supreme Court rejected the appellants' arguments for the following reasons:
- Taxpayer status: The Federal Supreme Court ruled that the lower court's interpretation of cantonal and municipal law was not arbitrary. The infrastructure tax is intended to capture the added value of the property as a whole, rather than individual condominium units. A land-use planning measure, such as a new general development plan (PGA), enhances the value of the entire plot. Consequently, the tax constitutes a common expense within the meaning of Art. 712h para. 2 item 3 of the Swiss Civil Code. It is therefore permissible to consider the condominium owners' association, which represents the co-owners in common matters, as the debtor of the tax. This approach complies with the principle of tax legality.
- Nature of the tax: The tax is correctly classified as a cost-covering earmarked tax. It serves to finance infrastructure costs in the broad sense (roads, as well as schools, daycare centers, etc.) necessitated by the increase in building potential. The claim regarding a violation of the cost-covering principle, raised for the first time before the Federal Supreme Court, was deemed inadmissible as it would require the submission of new evidence.
- Ability to pay: The principle of ability to pay has only limited scope for earmarked taxes. The tax is legitimately based on the increase in building potential, which constitutes added value for the property, even if no construction project is currently underway. Furthermore, the option provided by law and specifically offered by the Municipality to defer payment of the tax until a building permit is issued ensures compliance with the principle of proportionality and takes the owners' situation into account.
- Equal treatment: There is no unequal treatment, as the condominium owners' associations were able to challenge the tax assessment decision, their standing to appeal having been recognized.
Outcome
The Federal Supreme Court dismissed the appeal. It confirmed that condominium owners' associations are indeed the debtors for the infrastructure taxes claimed by the Municipality of Prilly. The legal costs are to be borne by the appellants.
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